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Cite as: [2010] ECHR 520
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FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no.
53349/08
by Morten FURUHOLMEN
against Norway
The European Court of Human Rights (First Section), sitting on 18 March 2010 as a Chamber composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Khanlar
Hajiyev,
Dean
Spielmann,
Sverre
Erik Jebens,
Giorgio
Malinverni,
George
Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having regard to the above application lodged on 27 October 2008,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Morten Furuholmen, is a Norwegian national who was born in 1963 and lives in Oslo. He was represented before the Court by Mr J.C. Elden, a lawyer practising in Oslo.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. The circumstances of the case
1 General background
In 2007 the applicant was appointed by Borgarting High Court to act as defence counsel before it of a person, Mr A., whom the Oslo City Court had convicted, inter alia, of aggravated ill-treatment of his former wife Mrs B. and had sentenced to two years and three months’ imprisonment. Mr A. had been charged under Article 219 of the Penal Code of having repeatedly over a period of four months subjected Mrs B. to violence, including tying a strap around her legs and/or feet and hanging her from the ceiling, hitting and kicking her and using a strangulation grip on her, and committing acts of violence using different objects; threatening to kill her and refusing repeatedly to allow her to leave the apartment where they lived. He had also been charged, inter alia, under Article 132A with putting pressure on Mrs B. to withdraw her deposition to the police and/or not to appear in court and/or to give a false statement. Mr A. had previously been represented by other counsel before the City Court.
2. The applicant’s request on Mr A.’s behalf for a reconstruction and the High Court’s refusal
Mr A. disputed that such hanging as described in the indictment had taken place. In his written appeal submissions to the High Court the applicant announced that a reconstruction of the most serious incidents of violence would be necessary. After the Public Prosecutor declined this initiative, the applicant directed a formal request to the High Court to order a reconstruction of the alleged hanging incidents and additional investigative measures.
On 26 September 2007 the High Court rejected the request for a reconstruction of the alleged hanging incidents on the ground that such a reconstruction was assumed to have little evidentiary significance compared to the other evidence in the case and which had been described in the City Court’s judgment.
The High Court held the trial hearing from 18 to 29 October 2007. At the close of the hearing session of 25 October 2007 the applicant announced that he wished to present himself as a witness in the case in order to explain and show photographs from his own reconstruction of the hanging of the victim. The purpose was to prove that the hanging could not have taken place as stated by the victim.
On 26 October 2007 the High Court, after hearing arguments from each side, unanimously rejected the applicant’s request, finding it obvious that the reconstruction performed by him had no value as evidence. The reconstruction had been carried out in the absence of the victim and the accused and without any representative of the prosecution or other independent persons who could monitor or control the manner in which the reconstruction had been done. Therefore, all that could be derived from the reconstruction was counsel’s own allegations, which were devoid of any evidentiary value.
3. Information imparted by the applicant to the press
After the session of 26 October 2007, which had been held in the presence of the press and without any prohibition being imposed on referring to the proceedings, journalists invited the applicant to comment on the above-mentioned matter. He then made the photographs from the reconstruction available to the press, explained what the reconstruction showed and pointed out that it was absurd that the question of guilt was to be determined without this decisive material being made known to the jury.
On 27 October 2007 the Dagbladet and Dagsavisen newspapers published reports on the private reconstruction that the applicant had unsuccessfully sought to have admitted as evidence. This included photographs, his explanations and his comments that the case was a “miscarriage of justice” (“justismord”), that if the evidence had been admitted he would have been able to demonstrate that the hanging had not taken place as described by the victim and that his client would have been acquitted. The Public Prosecutor was quoted as having stated that, by having sought to introduce the private reconstruction as evidence, the applicant had lost his professional distance to the case.
On 29 October 2007 the High Court invited the applicant to explain his possible involvement in the above-mentioned media coverage. In a statement of 6 November 2007 he confirmed that he had been the source of the information published and acknowledged that this could be perceived by the High Court as unfortunate and apologised for that. However, he stressed that there was no reason to criticise him in this connection, even less any reason to view his conduct as having been improper.
4. The High Court’s rulings of 8 November 2007
(i) Judgment in the criminal case against Mr A
By a judgment of 8 November 2007 the High Court, sitting with a jury, convicted Mr A. on charges of aggravated ill-treatment under Article 219 of the Penal Code and two offences of obstruction of justice under Article 132A. It sentenced him to three years and six months’ imprisonment.
For the assessment of the sentence, the High Court based itself notably on the following facts.
Mr A. was a Norwegian citizen, thirty-four years of age, originating from Bangladesh. In 2005 he had married Mrs B., a Bangladeshi national (probably born in October 1988).
The first incident of violence had occurred two weeks after the victim had arrived in Norway in March 2006. Mr A. had been irritated because Mrs B. had forgotten to move a bag of ice to a newly acquired fridge. Mr A. had shouted at her and - after his daughter had gone to bed- he had beaten her up. After this and until 25 August 2006, when Mrs B. had moved to a crisis centre for battered women, Mr A. had subjected her to violence on a number of occasions.
The High Court further relied on the victims’ statement that on four occasions Mr A. had punished her by hanging her by her arms and legs. The hanging could last for an hour or more and had often been combined with blows delivered to her body and the soles of her feet. The last occurrence had been a few days before the victim had been helped to get to the crisis centre.
The charges against Mr A. concerned aggravated, devious and in part dangerous physical and psychological abuse over time. The ill-treatment did not have an impulsive character but that of planned and systematic abuse. Some of the violence perpetrated had the character of torture, notably the hanging incidents and the blows to the soles of her feet. The ill-treatment had been unprovoked and had been perpetrated against a totally defenceless person who was in a relationship of dependence vis-à-vis Mr A. She was completely unfamiliar with the conditions of life in Norway and had nowhere to escape to. She lived in a constant situation of threats and fear with anxiety about further punishment. She feared being crippled for life or killed. She also feared being returned to Bangladesh as a dishonoured woman.
Mr A. appealed to the Supreme Court against the High Court’s procedure and the sentence.
(ii) Imposition of a fine on the applicant
In a decision delivered on the same date as the above judgment, the High Court imposed on the applicant a fine of 10,000 Norwegian kroner (NOK) for an offence against the good order of court proceedings (rettergangsbot). The High Court observed that publication of some of the evidence which the court had refused to admit to the case, before the case had been adjudicated, was unfortunate. Such publication could in principle contribute to influence the stance adopted by lay judges and jurors whilst pursuant to applicable rules of procedure only evidence that had been presented in court should be given weight. Where it was the defence counsel who has been the origin of the material being published, it could easily be perceived as an attempt to circumvent the courts’ decision to exclude the evidence and to influence the court extra-judicially. The High Court considered that such a conduct by a public official ought normally to be regarded as improper for the purposes of section 200 of the Administration of Court Act (domstolloven).
The High Court found that the publication of the photographs, seen together with the applicant’s comments to the press, had amounted to an unacceptable attempt to influence the jury’s determination of the question of guilt. The applicant had conceded that his aiding and abetting of the publication had been unfortunate.
The High Court concluded that the applicant had displayed improper conduct, which warranted severe criticism, and had done so with intent. The conditions for imposing a fine for an offence against the good order of court proceedings had been fulfilled and such a sanction should be imposed.
The applicant appealed against the High Court’s decision to the Supreme Court, challenging the merits of the imposition of the fine. He also asked the Supreme Court to hold an oral hearing on the matter, referring to the important issues of principle it raised.
5. Complaint against the applicant to professional organisation
Shortly thereafter the Public Prosecutor lodged a complaint against the applicant with the Norwegian Association of Advocates (Den Norske Advokatforening), alleging a breach of the code of ethics. The Association adjourned its examinations pending the outcome of his appeal to the Supreme Court. No further information has been supplied by the applicant regarding these proceedings.
6. The Supreme Court’s rulings of 28 April 2008
(i) Decision on Mr A.’s appeal
By a decision of 28 April 2008 the Supreme Court unanimously quashed the High Court judgment of 8 November 2007, finding that the latter had failed to ensure that there was sufficient understanding of the case, as required by Article 294 of the Code of Criminal Procedure. In the present instance, the High Court had good reason to seek better insight into the circumstances surrounding the hanging of the victim, a central aspect of the case. This could among other ways, have been done - taking the victim’s explanation as a starting point – by carrying out a form of technical reconstruction or by obtaining an expert evaluation of the technical and medical conditions. The defendant’s objections on this point had been presented so early in the procedure that, bearing in mind the importance of the matter, such investigations would not have entailed significant inconvenience. The fact that there was no further investigation of the technical and medical conditions surrounding the incidents of hanging of the victim meant that a central issue in the case had not been sufficiently clarified and thus amounted to a procedural error. Since there was a reasonable possibility that the error had had an effect on the substance of the judgment convicting Mr A., this part of the judgment ought therefore to be quashed. In view of this, and finding no reason to maintain the remainder of the High Court judgment, the Supreme Court quashed the judgment in its entirety.
(ii) Decision on the applicant’s appeal
In another decision of the same date the Supreme Court unanimously dismissed the applicant’s appeal against the High Court order that he pay a fine for an offence against the good order of court proceedings.
Mrs Justice Endresen stated the following reasons, which were upheld in the main by the remaining members.
It was clear that a court-appointed defence counsel was to be considered a “public officer” within the meaning of section 200 of the Administration of Court Act. The decisive issue was whether the conduct at issue could be regarded as “improper”. This legal standard was applied in a number of cases; it only covered matters that were unlawful and worthy of punishment. The problem at issue in the present case had not previously been submitted to the courts.
A starting point for the assessment should be the role of courts in judicial proceedings, namely to ensure the proper conduct of the proceedings and decide on the admissibility of evidence. A basic condition for the good order of judicial proceedings was that a court’s decision be respected even when a party perceived it as purposeless or unfair. The relevant statutory provisions contained detailed rules regulating the manner in which a party could challenge such a decision.
Although, technically speaking, the High Court’s decision in this case only concerned whether the evidence in question could be adduced before it, the applicant’s indirect imparting of the “evidence” clearly was disloyal in relation to the High Court’s refusal to admit the evidence to the file. According to Article 305 the jury should only take into account evidence adduced at the trial hearing. However, this did not mean that one should be indifferent about attempts to influence the members of the jury in other ways, as done by the applicant here.
Whether the applicant’s conduct could be considered “improper” would depend on an assessment of the circumstances of the case as a whole. Considerations that could excuse or explain the conduct would be relevant to this assessment and to whether a fine should be imposed.
The criminal case against Mr A. had given rise to extensive comment in the press, which to a large extent affirmed that a particularly serious crime had occurred despite this having not been acknowledged by the accused. Whilst it was understandable that counsel for the defence felt a need to seek a better balance in press comments, this could hardly be given any weight in the assessment of the matter for which the applicant had been fined. What was of central importance in this case was not that counsel pleaded the case in the press but that he failed to respect the court’s decision regarding the admissibility of evidence.
Nor could the provisions on free speech protection be decisive. The High Court’s decision had not been aimed at limiting free speech nor had it entailed any such limitations. The applicant had been free to criticise both the decision and to elaborate on his criticism by giving an account of evidence that he wished to adduce. He could have expressed his criticism immediately. It was only in respect of the evidence that had been dismissed that he had to await the jury’s verdict before voicing his criticism.
The domestic laws of other countries went much further in prohibiting comments on evidence in pending criminal proceedings, without this having been considered to amount to a violation of Article 10 of the Convention. Also, “maintaining the authority and impartiality of the judiciary” was a legitimate aim that could justify interference with freedom of expression.
Further guidance on what might be considered improper in the sense of section 200 of the Administration of Court Act could be found in Chapter 12, item 2.3.2 of the Regulation on Advocates, namely the advocate’s duty to display restraint in order to hinder the danger of influence on the jury. Section 200 contained a sufficiently clear legal basis for the fine imposed in the present case.
Furthermore, the applicant’s freedom of expression had not been interfered with to any significant degree.
Defence counsel has the role of defending his or her client’s interests in the best possible manner and should be able to enjoy a considerable margin of error in this regard so that his or her work would not be unduly hindered by a risk of sanctions. However, this consideration could not be given much weight in the present instance. By carrying out his own “reconstruction” based on his own allegations about how the victim’s statements should be understood and by presenting himself as a witness in the case, the applicant had abandoned the core of his role as an advocate. Moreover, since it was established that the applicant’s aim had been to influence the jury’s verdict by rendering parts of the dismissed evidence public, the case raised no difficult issue of principle.
The applicant’s argument that the criticism against him had been unjustified as the dismissed evidence had been considered by the High Court to be without evidential value and consequently could not have influenced the jury, was beside the point. The criticism was justified already by his aims and his having shown disrespect for the court’s decision. Also, the fact that an item of evidence had been regarded as having no evidential value clearly did not mean that it would be incapable of influencing the jury, when presented by the press as decisive evidence and outside adversarial proceedings.
Finally, as to the applicant’s submission that the imposition of a prohibition on him on publicising the dismissed evidence was futile in view of the absence of any prohibition on the press or third parties on referring to the proceedings, Mrs Justice Endresen observed as follows. This argument had a certain weight in relation to the importance of the fact that the evidence could have been brought to the attention of the jury. This was so, even though the weight of the evidence had been accentuated particularly strongly by counsel making the essence of it known immediately after the High Court had refused it. However, this argument did not alter the fundamental consideration that the court’s role in assuming leadership in the conduct of the proceedings must be respected by those who act at a professional level in the proceedings.
Accordingly, the applicant’s conduct had been “improper” and warranted the imposition of a fine.
B. Relevant domestic law
Section 200 in Chapter 10 (entitled “Punishment for Offences Against the Good Order of Court Proceedings ...”) of the Administration of Courts Act read:
“A public officer, legal representative, court assistant or privately appointed counsel, who is guilty of neglect or other improper matters during judicial proceedings .... may be punished by the imposition of a fine and may be liable to pay compensation in full or in part to the victim.”
COMPLAINTS
The applicant complained that the national courts’ decision to impose a fine on him for an offence against good order in court proceedings entailed a violation of Article 10 of the Convention. Moreover, in breach of Article 6 § 1 of the Convention, that decision had been taken first by the High Court then been upheld by the Supreme Court, on the basis of an exclusively written procedure. Also, their finding that his aim had been to influence the High Court jury had not been based on an assessment of evidence respecting Article 6 § 2. In addition, contrary to the impartiality requirement in Article 6 § 1, the disputed sanction had been imposed by the same court which had felt prejudiced by the alleged improper conduct.
THE LAW
A. Complaint under Article 10 of the Convention
In so far as is relevant, Article 10 of the Convention reads:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and ... impart information and ideas without interference by public authority and regardless of frontiers. ...
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, ... for maintaining the authority and impartiality of the judiciary.”
1. The applicant’s submissions
The applicant complained that the national courts’ imposition on him of a criminal sanction under section 200 of the Administration of Courts Act constituted a violation of Article 10 of the Convention. The applicant argued that he had defended his client in an adequate and correct manner. The subsequent decision by the Supreme Court quashing the High Court’s judgment showed that the latter had been wrong in refusing to admit the evidence offered and that it had been necessary in order to ensure the applicant’s proper defence.
The disputed photographs had been imparted to the press in the exercise of freedom of expression in a democratic society, where the press assumed a particular responsibility in monitoring and informing the public about court proceedings so as to enable public scrutiny of the judiciary. While it was his client who had imparted the material at issue to the press, the applicant had been punished on the assumption that he had been criminally liable as a court servant not to aid and abet in this otherwise lawful act.
Referring to Article 6 § 3 (b) and (c), the applicant argued that from the right of his client to defend himself by a lawyer of his choice followed a protection for this counsel against being attacked by the State in the performance of his defence. Otherwise it would entail real barriers against obtaining qualified defence in a criminal case. Criminalising defence counsel on account of his manner of discharge of his work in protecting his client’s interests in accordance with his requests would violate these provisions. It was also the role of counsel to take a serious approach vis-à-vis the court and to protest when he considered that his client’s fundamental rights had been violated, as in the present case, where the applicant considered that the High Court’s refusal violated Article 6 § 3(d) of the Convention. It was obviously in his client’s interest that media had commented on the High Court’s violation of his fundamental rights, of which the photographs were a telling illustration.
Moreover, to impart material which the High Court had stated was devoid of evidential value could hardly be considered “improper”. It should also be noted that according to Article 305 the jury was empowered to attach weight only to evidence that had been adduced “within the four walls” of the trial court. Media comment on the High Court’s procedure should therefore not have influenced the jury’s deliberations.
2. Assessment by the Court
The Court observes that by virtue of the High Court decision of 8 November 2007, which the Supreme Court upheld on 28 April 2008, the applicant was fined NOK 10,000. This was for an offence against the good order of court proceedings (rettergangsbot) on account of his having assisted while acting as counsel for the defence in the publication by the press of material that the High Court had refused to admit as evidence in the case by its decision of 26 October 2007. In the Court’s view the disputed sanction imposed on the applicant amounted to an interference with his freedom to impart information and ideas for the purposes of paragraph 1 of Article 10.
As to the further question whether the conditions for such interference set out in its paragraph 2, the Court is satisfied that it pursued the legitimate aim of “maintaining the authority and impartiality of the judiciary” and that it was prescribed by law, namely section 200 of the Administration of Courts Act. Indeed, the applicant did not dispute this before the Court. The only issue arising is whether the interference was “necessary in a democratic society”.
The test of “necessity in a democratic society” requires the Court to determine whether the “interference” complained of corresponded to a “pressing social need”, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it were relevant and sufficient (see Sunday Times v. the United Kingdom (no. 1), judgment of 26 April 1979, Series A no. 30, p. 38, § 62). In assessing whether such a “need” exists and what measures should be adopted to deal with it, the national authorities are left a certain margin of appreciation. This power of appreciation goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those delivered by an independent court (see Kyprianou v. Cyprus ([GC], no. 73797/01, ECHR 2005 XIII; Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 58, ECHR 1999-III; Cumpănă and Mazăre, cited above, § 88; and Nikula v. Finland, no. 31611/96, § 46, ECHR 2002 II).
The Court further reiterates that in Kyprianou (cited above) it held:
“172. The phrase “authority of the judiciary” includes, in particular, the notion that the courts are, and are accepted by the public at large as being, the proper forum for the settlement of legal disputes and for the determination of a person’s guilt or innocence on a criminal charge (see Worm v. Austria, judgment of 29 August 1997, Reports 1997-V, p. 1549, § 40). What is at stake as regards protection of the authority of the judiciary is the confidence which the courts in a democratic society must inspire in the accused, as far as criminal proceedings are concerned, and also in the public at large (see, mutatis mutandis, among many other authorities, Fey v. Austria, judgment of 24 February 1993, Series A no. 255-A, p. 12, § 30).
173. The special status of lawyers gives them a central position in the administration of justice as intermediaries between the public and the courts. Such a position explains the usual restrictions on the conduct of members of the Bar. Regard being had to the key role of lawyers in this field, it is legitimate to expect them to contribute to the proper administration of justice, and thus to maintain public confidence therein (see Amihalachioaie v. Moldova, no. 60115/00, § 27, ECHR 2004-III; Nikula, cited above, § 45; and Schöpfer, cited above, pp. 1052-53, §§ 29-30, with further references).
174. Article 10 protects not only the substance of the ideas and information expressed but also the form in which they are conveyed. While lawyers too are certainly entitled to comment in public on the administration of justice, their criticism must not overstep certain bounds. Moreover, a lawyer’s freedom of expression in the courtroom is not unlimited and certain interests, such as the authority of the judiciary, are important enough to justify restrictions on this right. Nonetheless, even if in principle sentencing is a matter for the national courts, the Court refers to its case-law to the effect that it is only in exceptional circumstances that restriction – even by way of a lenient criminal penalty – of defence counsel’s freedom of expression can be accepted as necessary in a democratic society (see Nikula, cited above, §§ 54-55).”
Turning to the particular circumstances of the present case, the Court notes that in its above-mentioned decision of 26 October 2007 the High Court had in the exercise of its ordinary discretion to decide on the admissibility and relevance of evidence and after having heard arguments from both the prosecution and the defence, refused to admit to the case certain evidence offered by the applicant with his client Mr A’s consent. This had concerned photographs from a reconstruction carried out privately by the applicant and explanations he had wished to give in court as a witness. Both the High Court and the Supreme Court noted the particular character of his procedural motion. According to the latter court, it suggested that he had abandoned the core of his advocate role.
Nonetheless, an essential feature of the present case is that the applicant was not sanctioned on account of his pleadings or conduct in court (compare Kyprianou, cited above, §§ 176-183, and Nikula, cited above, §§ 54-55) but, rather, for his conduct on the side of the proceedings. Shortly after the High Court had pronounced its decision of 26 October 2007, he assisted in making the photographs available to members of the press who had attended the court session on that date. He explained to them what the photographs showed and how meaningless it was that the question of guilt should be determined without this decisive material being made known to the jury. Two newspapers published the material with the applicant’s comments the following day.
While the High Court’s 26 October 2007 decision did not expressly prohibit the applicant from imparting such material and comments to the press, the applicant was under a particular duty as an advocate to respect the High Court’s refusal to admit this evidence to the case and to display restraint in order to hinder undue influence on the jury. The Court finds no reason to call into doubt the assessment made by the High Court and by the Supreme Court on appeal that his actions had been aimed at influencing the jury and accordingly amounted to a disloyal attempt to circumvent the High Court’s refusal to admit the evidence in question. Whether he in effect had actually exerted such influence was not decisive for the Supreme Court; it was his aim of doing so which had made his conduct an offence against the good order of court proceedings. Accordingly, in the Supreme Court’s reasoning it was immaterial that the High Court had refused to admit the reconstruction on the ground that it had no value as evidence. Also, this state of affairs did not mean that the material imparted by the applicant would be incapable of influencing the jury, when presented by the press as decisive evidence and outside adversarial proceedings. In the Court’s view, it could reasonably be considered that the applicant’s imparting of the information at issue to the press at the relevant time posed a real threat to the authority and impartiality of the judiciary (compare Sunday Times v. the United Kingdom (no. 1), cited above, § 66).
It is further to be noted that, from the Supreme Court’s reasoning, it transpires that the restriction on the applicant’s freedom to publicly criticise the conduct of the proceedings only related to the evidence that had been excluded and that there would have been no offence had he awaited the jury’s verdict. Moreover, it was open to him to voice his criticism against the High Court’s decision in a judicial appeal. The Court therefore shares the Supreme Court’s view that the disputed limitation on the scope of the applicant’s freedom of expression had not been significant.
In this connection the Court cannot but note that when the applicant exercised the judicial remedy of appeal on his client’s behalf to the Supreme Court against the High Court’s judgment the remedy proved effective: The Supreme Court quashed the High Court judgment on the ground of procedural error, in that it had failed to shed sufficient light on the circumstances surrounding the hanging incidents, which it could have done, notably by carrying out a technical reconstruction or by obtaining an expert evaluation. Contrary to what the applicant seems to suggest, the Court considers that this favourable outcome of use of judicial remedies shed doubt on rather than confirmed the appropriateness of his attempt to influence the jury extra-judicially pending the proceedings before the High Court. His conduct in respect of the latter could hardly be regarded as compatible with the contribution that it was legitimate to expect lawyers to make to maintaining public confidence in the judicial authorities (see Schöpfer v. Switzerland, judgment of 20 May 1998, Reports 1998-III, § 31).
Finally, the Court notes that the fine imposed, NOK 10,000 (approximately 1,200 euros (EUR)), was not particularly severe.
In the light of the above, the Court is satisfied that the impugned interference with the applicant’s freedom of expression was supported by reasons that were relevant and sufficient, and was proportionate to the legitimate aim pursued.
It follows that this part of the application must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
B. Various complaints under Article 6 of the Convention
1. Written character of the procedure
The applicant complained that, in breach of Article 6 § 1, the disputed fine for an offence against the good order of court proceedings had been imposed on him on the basis of an exclusively written procedure before two levels of jurisdiction.
However, it is to be noted that he does not seem to have expressed a wish to present oral arguments on the matter before the High Court. Nor did he challenge the High Court’s procedure in this respect in his appeal to the Supreme Court. Thus far he has failed to exhaust domestic remedies. It follows that this part of the application must therefore be declared inadmissible under Article 35 §§ 1 and 4.
It was only before the Supreme Court that the applicant asked for an oral hearing, referring to the important questions of principle raised by the case. However, leaving aside the question whether Article 6 was at all applicable to the matters complained of (see, mutatis mutandis, Ravnsborg v. Sweden, 23 March 1994, §§ 33-36, Series A no. 283 B), in the interest of a proper administration of justice, it is normally more expedient that a hearing be held at first instance rather than only before the appellate court (see Miller v. Sweden, no. 55853/00, § 30, 8 February 2005). In the present instance, the sanction had been imposed by the High Court before which the improper conduct had occurred and after hearing the applicant’s explanations in writing. No convincing argument has been submitted as to why the Supreme Court acting as the appellate court should have been required to give the applicant an opportunity to submit oral submissions on the matter before it when he had not asked for such an opportunity before the High Court. This part of the application is therefore manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4.
2. Burden of proof
The applicant also complained that the High Court had set aside his explanation and had found it established that he had wilfully sought to influence the jury, as had the Supreme Court in a procedure in which the applicant’s contestation of liability had been the only evidence offered. The omission to adduce evidence against him raised an issue of under Article 6 § 2.
However, leaving aside that this complaint does not appear to have been raised to a sufficient degree before the Supreme Court to satisfy the requirement of exhaustion of domestic remedies, it discloses no appearance of failure to respect the provisions of the Convention. This part of the application is therefore manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4.
3. Alleged lack of impartiality
The applicant further complained that since the punishment had been imposed by the same court which had felt prejudiced by the allegedly improper conduct, it had failed to fulfil the requirement of impartiality in Article 6 § 1. This consideration applied in particular to a criminal offence under section 200 of the Administration of Courts Act for which it was a condition that the conduct had been improper vis-à-vis the court. Since the assessment of the evidence had taken place in the High Court, the violation could not have been remedied by the appellate review provided by the Supreme Court.
The Court notes however that the applicant did not raise this complaint either expressly or in substance in his appeal to the Supreme Court and has therefore failed to exhaust domestic remedies as required by Article 35 § 1. This part of the application must therefore be declared inadmissible pursuant Article 35 § 4.
For these reasons, the Court by a majority
Declares the application inadmissible.
Søren Nielsen Christos Rozakis
Registrar President